DEDICATED TO CALVIN AND RAN

Started 12/30/09

Many lovers of God, the country, and the Constitution, ask

themselves “what is happening to my rights? Where are they going?”
This essay answers these questions.

INTRODUCTION

At the conclusion of reading this essay one will have the

opportunity to understand how the state has craftily converted your
rights to a privilege. You will know why virtually all licensing schemes
cannot rightfully be classified as criminal laws. You will understand that
subjecting you to criminal penalties for license violations is morally
wrong, and legally wrong. You will have the opportunity also to
understand the very core conflict of jury-less criminal trials for
“infraction” level offenses. I have never met an attorney that knew
what the definition of “court”, “crime”, “public offense” actually
meant, however you will at the end of this essay. You must understand
that this knowledge is not known by even professionals. It is not
“hidden knowledge” however. All of the proof for this essay can be
found in published books or in scanned copies (actual pictures of the
books) on the internet.

Unlike other patriot groups’ disseminations, this essay will be

based on actual historical law, court rulings, jurisprudence anthologies,
statutes, rules, regulations, cases, and codes. It is important that one
learning this material feel that they have the raw material themselves.
It is not proper to educate one’s self by relying on the “experience” of
some guru. The learning person must have access to the source
knowledge and must come to there own conclusion on how well the
material proves the points that it attempts to make.

Let’s just start at the basics and go from there. Law is a natural
way for humans to exist. God has laws in his kingdom and so laws are
reflected into our own world. Having laws and existing in a society is
blessing for humanity. The formation of political states and laws are
also a blessing and should be respected as such to the extent that the
state functions to serve the people who created it. The rule of law and
a community willing to enforce its laws have removed man from a
“might makes right” society, and placed man in a setting where
“personal rights and adhering to those rights makes right” society. By
placing each and every individual’s rights on an equally important
footing a society ripens into a just society. The following is from
BOUVIER’S LAW DICTIONARY 1856 EDITION
“LAW. In its most general and comprehensive sense, law
signifies a rule of action; and this term is applied
indiscriminately to all kinds of action; whether animate or
inanimate, rational or irrational. 1 Bl. Com. 38. In its more
confined sense, law denotes the rule, not of actions in
general, but of human action or conduct. In the civil code
of Louisiana, art. 1, it is defined to be "a solemn expression
of the legislative will." Vide Toull. Dr. Civ. Fr. tit. prel. s. 1,
n. 4; 1 Bouv. Inst. n. 1-3.

2. Law is generally divided into four principle classes,

namely; Natural law, the law of nations, public law, and
private or civil law. When considered in relation to its
origin, it is statute law or common law. When examined as
to its different systems it is divided into civil law, common
law, canon law. When applied to objects, it is civil, criminal,
or penal. It is also divided into natural law and positive law.
Into written law, lex scripta; and unwritten law, lex non
scripta. Into law merchant, martial law, municipal law, and
foreign law. When considered as to their duration, laws are
immutable and arbitrary or positive; when as their effect,
they are prospective and retrospective. These will be
separately considered.” BOUVIER’S LAW DICTIONARY 1856
EDITION

“LAW OF NATURE. The law of nature is that which

God, the sovereign of the universe, has prescribed
to all men, not by any formal promulgation, but by
the internal dictate of reason alone. It is discovered by
a just consideration of the agreeableness or
disagreeableness of human actions to the nature of man;
and it comprehends all the duties which we owe either to
the Supreme Being, to ourselves, or to our neighbors; as
reverence to God, self-defence, temperance, honor to our
parents, benevolence to all, a strict adherence to our
engagements, gratitude, and the like. Erskines Pr. of L. of
Scot. B. 1, t. 1, s. 1. See Ayl. Pand. tit. 2, p. 5; Cicer. de
Leg. lib. 1.

2. The primitive laws of nature may be reduced to six,

namely: 1. Comparative sagacity, or reason. 2. Self-love. 3.
The attraction of the sexes to each other. 4. The
tendemess of parents towards their children. 5. The
religious sentiment. 6. Sociability.
3. - 1. When man is properly organized, he is able to
discover moral good from moral evil; and the study
of man proves that man is not only an intelligent,
but a free being, and he is therefore responsible for
his actions. The judgment we form of our good actions,
produces happiness; on the contrary the judgment we form
of our bad actions produces unhappiness.

4. - 2. Every animated being is impelled by nature to

his own preservation, to defend his life and body
from injuries, to shun what may be hurtful, and to
provide all things requisite to his existence. Hence
the duty to watch over his own preservation. Suicide and
duelling are therefore contrary to this law; and a man
cannot mutilate himself, nor renounce his liberty.

5. - 3. The attraction of the sexes has been provided

for the preservation of the human race, and this law
condemns celibacy. The end of marriage proves that
polygamy, (q. v.) and polyendry, (q. v.) are contrary to the
law of nature. Hence it follows that the husband and wife
have a mutual and exclusive right over each other.

6. - 4. Man from his birth is wholly unable to provide

for the least of his necessities; but the love of his
parents supplies for this weakness. This is one of
the most powerful laws of nature. The principal duties
it imposes on the parents, are to bestow on the child all the
care its weakness requires, to provide for its necessary
food and clothing, to instruct it, to provide for its wants,
and to use coercive means for its good, when requisite.

7. - 5. The religious sentiment which leads us

naturally towards the Supreme Being, is one of the
attributes which belong to humanity alone; and its
importance gives it the rank of the moral law of nature.
From this sentiment arise all the sects and different forms
of worship among men.

8. - 6. The need which man feels to live in society, is

one of the primitive laws of nature, whence flow our
 duties and rights; and the existence of society depends
upon the condition that the rights of all shall be respected.
On this law are based the assistance, succors and good
offices which men owe to each other, they being unable to
provide each every thing for himself.” BOUVIER’S LAW
DICTIONARY 1856 EDITION

The power of the state is awesome. The power is so awesome

that it can greatly affect the course of many men. When a state acts
within the laws of justice, and god, the state itself can become blessed,
however, when a state turns on its people, casts out god, and seeks its
own preservation, it becomes despotic and a home to tyrants.

Above is the general definitions for “law” at around the time that
the state of California passed its first constitution (1849). In California
law exists as common law and statutory law.

Common law is the law we had adopted from England. California

used the common law as it existed in 1849 in England to fill the void of
law created by forming a new state. The common law is not written in
our law books of California, it was simply adopted in toto. Common law
is also the body of language that the Constitution itself was written in.
Statutory law is law that is passed by the legislature which either
modifies what was in the common law, or it treads on new ground
altogether.

“LAW, COMMON. The common law is that which

derives its force and authority from the universal consent
and immemorial practice of the people. It has never
received the sanction of the legislature, by an express act,
wbich is the criterion by which it is distinguished from the
statute law. It has never been reduced to writing; by this
expression, however, it is not meant that all those laws are
at present merely oral, or communicated from former ages
to the present solely by word of mouth, but that the
evidence of our common law is contained in our books of
Reports, and depends on the general practice and judicial
adjudications of our courts.” BOUVIER’S LAW DICTIONARY
1856 EDITION

Statutory law is made when the legislature passes a “statute”.

“Statute” simply means a written and published law. Statutes start out
as bills, make it to two houses, get signed by the Governor, and
become a statute.

CALIFORNIA CONSTITUTION
 ARTICLE 4 LEGISLATIVE

SEC. 8. (a) At regular sessions no bill other than the

budget bill may be heard or acted on by committee or
either house until the 31st day after the bill is introduced
unless the house dispenses with this requirement by
rollcall vote entered in the journal, three fourths of the
membership concurring.
(b) The Legislature may make no law except by
statute and may
enact no statute except by bill. No bill may be passed
unless it is read by title on 3 days in each house except
that the house may dispense with this requirement by
rollcall vote entered in the journal, two thirds of the
membership concurring. No bill may be passed until the
bill with amendments has been printed and distributed to
the members. No bill may be passed unless, by rollcall
vote entered in the journal, a majority of the membership
of each house concurs.

Now that we know what a “statute” is and what “common law” is

we can now move into the difference between criminal law and civil
law.

CHAPTER 1

There are two distinct bodies of law called “criminal law” and
“civil law”. Both of these fields are occupied by common law and
statutory law. Criminal law is defined in the following definitions:

LAW, PENAL. One which inflicts a penalty for a

violation of its enactment. BOUVIER’S LAW DICTIONARY
1856 EDITION

LAW, CRIMINAL. By criminal law is understood that

system of laws which provides for the mode of trial of
persons charged with criminal offences, defines crimes,
and provides for their punishments. BOUVIER’S LAW
DICTIONARY 1856 EDITION

LAW, CIVIL. The term civil law is generally applied by way

of eminence to the civil or municipal law of the Roman empire,
without distinction as to the time when the principles of such law
were established or modified. In another sense, the civil law is
that collection of laws comprised in the institutes, the code, and
the digest of the emperor Justinian, and the novel constitutions
of himself and some of his successors. Ersk. Pr. L. Scotl. B. 1, t. l,
s. 9; 6 L. R. 494.

6. Sometimes by the term civil law is meant those

laws which relate to civil matters only; and in this sense
it is opposed to criminal law, or to those laws which
concern criminal matters. Vide Civil. BOUVIER’S LAW
DICTIONARY 1856 EDITION

California Code of Civil Procedure

20. Judicial remedies are such as are administered by the
Courts of justice, or by judicial officers empowered for that
purpose by the Constitution and statutes of this State.

California Code of Civil Procedure

21. These remedies are divided into two classes:

1. Actions; and,
2. Special proceedings.

California Code of Civil Procedure

22. An action is an ordinary proceeding in a court of
justice by which one party prosecutes another for
the declaration, enforcement, or protection of a
right, the redress or prevention of a wrong, or the
punishment of a public offense.

California Code of Civil Procedure

23. Every other remedy is a special proceeding.

California Code of Civil Procedure

24. Actions are of two kinds:
1. Civil; and,
 2. Criminal.

California Code of Civil Procedure

25. A civil action arises out of:
1. An obligation;
2. An injury.

Now it has been established by section 24 of the Code of Civil

Procedure that there are only two types of judicial court settings, civil
and criminal. Also we have seen a little of what a civil law is. The
California Code of Civil Procedure states it pretty simply however:

California Code of Civil Procedure

30. A civil action is prosecuted by one party against
another for the declaration, enforcement or protection of a
right, or the redress or prevention of a wrong.

California Code of Civil Procedure

31. THE PENAL CODE defines and provides for the
prosecution of a
criminal action.

Now let us explore the world words of “criminal law”. Its is a

different body of law and as you will see “Crime” and “punishment”
are in fact paired in law and both are for addressing morally repugnant
activity.

CRIME. A crime is an offence against a public law. This

word, in its most general signification, comprehends all
offences but, in its limited sense, it is confined to felony. 1
Chitty, Gen. Pr. 14.

2. The term misdemeanor includes every offence inferior to

felony, but punishable by indictment or by-particular
prescribed proceedings.

3. The term offence, also, may be considered as,

having the same meaning, but is usually, by itself,
understood to be a crime not indictable but
punishable, summarily, or by the forfeiture of, a penalty.
Burn's Just. Misdemeanor.
 4. Crimes are defined and punished by statutes and
by the common law. Most common law offences are as
well known, and as precisely ascertained, as those which
are defined by statutes; yet, from the difficulty of exactly
defining and describing every act which ought to be
punished, the vital and preserving principle has been
adopted, that all immoral acts which tend to the
prejudice of the community are punishable by courts
of justice. 2 Swift's Dig.

5. Crimes are mala in se, or bad in themselves; and these

include. all offences against the moral law; or they are
mala prohibita, bad because prohibited, as being against
sound policy; which, unless prohibited, would be innocent
or indifferent. BOUVIER’S LAW DICTIONARY 1856 EDITION

In general civil law is for the private redress of a wrong and a

criminal law is for the public redress of a morally wrong act. Civil law
can also dictate things like how an office is to be perform in the
discharge of its duties. Sometimes acting in office and outside the law
is a crime. Criminal and civil law pervade every aspect of law. Every
violation of a law, common or statutory, must either be redressed by a
criminal action or a civil action when suing for a judicial remedy [some
remedies are “administrative” and do not actually involve the judicial
branch of the government]. That means every time parties are in front
of a “judge” they are involved in an “action”.

A criminal action is further defined in the Penal Code (Hereinafter

P.C.) per section 31 of the Code of Civil Procedure (hereinafter C.C.P.).

Penal Code
683. The proceeding by which a party charged with a
public offense is accused and brought to trial and
punishment, is known as a criminal action.

Penal Code
15. A crime or public offense is an act committed or omitted in
violation of a law forbidding or commanding it, and to which is
annexed, upon conviction, either of the following punishments:
1. Death;
2. Imprisonment;
3. Fine;
4. Removal from office; or,
 5. Disqualification to hold and enjoy any office of honor, trust,
or profit in this State.

Penal Code
16. Crimes and public offenses include:
1. Felonies;
2. Misdemeanors; and
3. Infractions.

P.C. section 15 states that “crimes” are “punished”. Let us look

at Bouvier’s definition of “punishment”.

Punishment:2. The right of society to punish, is

derived by Becoaria, Mably, and some others, from a
supposed agreement which the persons who composes the
primitive societies entered into, in order to keep order and,
indeed, the very existence of the state. According to
others, it is the interest and duty of man to live in society;
to defend this right, society may exert this principle in
order to support itself, and this it may do, whenever the
acts punishable would en-danger the safety of the whole.
And Bentham is of opinion that the foundation of this right
is laid in public utility or necessity. Delinquents are public
enemies, and they must be disarmed and prevented from
doing evil, or society must be destroyed. But, if the social
compact has ever existed, says Livingston, its end must
have been the preservation of the natural rights of the
members and, therefore the effects of this fiction are the
same with those of the theory which takes abstract justice
as the foundation of the right to punish; for, this justice, if
well considered, is that which assures to each member of
the state, the free exercise of his rights. And if it should be
found that utility, the last source from which the right to
punish is derived, is so intimately united to justice that it is
inseparable from it in the practice of law, it will follow that
every system founded on one of these principles must be
supported by the others.

Crimes are morally evil and it is the duty of the state to prevent
crime and to offer justice to crimes that have been committed. It is
never the duty of the state to license a crime. That cannot be stated
strongly enough. A state does not license murder, battery, or rape. We
can see from Bouvier’s Law dictionary that crimes are to be prevented
by the state and that the state has a duty punish criminals and thwart
crime. It is part of the states inherent duty to provide its people with
the safety of law and order. Thus a state cannot ever lawfully license a
true “crime”.

Statutory crimes are listed in the California Penal Code. Did you
ever wonder why “driving without a license” is not listed n the Penal
Code? It is listed in the Vehicle Code. Practicing law without a license is
found in the Business and Professions Code. Why are these things that
we have been told our whole lives are crimes, not listed in the Penal
Code? Because driving and practicing law are not crimes and thus the
state has tried to fool us into thinking that we need a license to do
these things lawfully.

Here is a list of crimes straight from the penal code. Notice how a
license to do these things generally does not exist. The only licensing
scheme listed in the Penal Code is the licensing scheme for firearms.
The lottery is allowed to be done by the state, and so could be
licensed. A license is a grant from the holder of a right to another. That
is it. If the state has the right to firearms then I can license that right
out. If we already have the right, we do not need a license. If the state
has the sole right to drive motor vehicles on the roads, then the state
can license out the right to drive. The state however dos not own the
roads, the people of the state do and the state hold the roads in trust.
That is also because of the thoughts in error that the right to own a
gun is not an individual right. Just recently has the U.S. Supreme court
ruled that the second amendment right to bear arms under the U.S.
Constitution was in fact an individual right. Here is that list of real
crimes that generally one cannot be licensed to do.

TITLE 7. OF CRIMES AGAINST PUBLIC JUSTICE

CHAPTER 1. BRIBERY AND CORRUPTION 92-100
CHAPTER 2. RESCUES 102
CHAPTER 3. ESCAPES AND AIDING THEREIN 107-110
CHAPTER 4. FORGING, STEALING, MUTILATING, AND FALSIFYING
JUDICIAL AND PUBLIC RECORDS AND DOCUMENTS 112-
117
CHAPTER 5. PERJURY AND SUBORNATION OF PERJURY 118-131
CHAPTER 6. FALSIFYING EVIDENCE, AND BRIBING, INFLUENCING,
INTIMIDATING OR THREATENING WITNESSES 132-141
CHAPTER 7. OTHER OFFENSES AGAINST PUBLIC JUSTICE 142-181
CHAPTER 8. CONSPIRACY 182-185
CHAPTER 9. CRIMINAL PROFITEERING 186-186.8
CHAPTER 10. MONEY LAUNDERING 186.9-186.10
CHAPTER 10.5. FRAUD AND EMBEZZLEMENT: VICTIM RESTITUTION
186.11
CHAPTER 11. STREET TERRORISM ENFORCEMENT AND PREVENTION ACT
186.20-186.33
 TITLE 8. OF CRIMES AGAINST THE PERSON
CHAPTER 1. HOMICIDE 187-199
CHAPTER 2. MAYHEM 203-206.1
CHAPTER 3. KIDNAPPING 207-210
CHAPTER 3.5. HOSTAGES 210.5
CHAPTER 4. ROBBERY 211-215
CHAPTER 5. ATTEMPTS TO KILL 217.1-219.3
CHAPTER 6. ASSAULTS WITH INTENT TO COMMIT FELONY, OTHER
THAN
ASSAULTS WITH INTENT TO MURDER 220-222
CHAPTER 8. FALSE IMPRISONMENT 236-237
CHAPTER 9. ASSAULT AND BATTERY 240-248
TITLE 9. OF CRIMES AGAINST THE PERSON INVOLVING SEXUAL
ASSAULT, AND CRIMES AGAINST PUBLIC DECENCY AND GOOD
MORALS
CHAPTER 1. RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND
SEDUCTION 261-269
CHAPTER 2. ABANDONMENT AND NEGLECT OF CHILDREN 270-273.75
CHAPTER 2.5. SPOUSAL ABUSERS 273.8-273.88
CHAPTER 4. CHILD ABDUCTION 277-280
CHAPTER 5. BIGAMY, INCEST, AND THE CRIME AGAINST NATURE
281-289.6
CHAPTER 5.5. SEX OFFENDERS 290-294
CHAPTER 6. DNA AND FORENSIC IDENTIFICATION DATA BASE AND
DATA BANK ACT OF 1998
Article 1. Purpose and Administration 295-295.1
Article 2. Offenders Subject to Sample Collection 296-
296.2
Article 3. Data Base Applications 297
Article 4. Collection and Forwarding of Samples 298-298.3
Article 5. Expungement of Information 299
Article 6. Limitations on Disclosure 299.5-299.7
Article 7. Construction and Severability 300-300.3
CHAPTER 7. OF CRIMES AGAINST RELIGION AND CONSCIENCE, AND
OTHER OFFENSES AGAINST GOOD MORALS 302-310.5
CHAPTER 7.5. OBSCENE MATTER 311-312.7
CHAPTER 7.6. HARMFUL MATTER 313-313.5
CHAPTER 8. INDECENT EXPOSURE, OBSCENE EXHIBITIONS, AND
BAWDY AND OTHER DISORDERLY HOUSES 314-318.6
CHAPTER 9. LOTTERIES 319-329
CHAPTER 10. GAMING 330-337z
CHAPTER 10.5. HORSE RACING 337.1-337.9
CHAPTER 11. PAWNBROKERS 343
CHAPTER 12. OTHER INJURIES TO PERSONS 346-368
TITLE 10. OF CRIMES AGAINST THE PUBLIC HEALTH AND SAFETY
369a-402c
TITLE 11. OF CRIMES AGAINST THE PUBLIC PEACE 403-420.1
TITLE 11.5. CRIMINAL THREATS 422-422.4
 TITLE 11.6. CIVIL RIGHTS
CHAPTER 1. DEFINITIONS 422.55-422.57
CHAPTER 2. CRIMES AND PENALTIES 422.6-422.865
CHAPTER 3. GENERAL PROVISIONS 422.88-422.93
TITLE 11.7. CALIFORNIA FREEDOM OF ACCESS TO CLINIC AND
CHURCH ENTRANCES ACT 423-423.6
TITLE 12. OF CRIMES AGAINST THE REVENUE AND PROPERTY OF THIS
STATE 424-440
TITLE 13. OF CRIMES AGAINST PROPERTY
CHAPTER 1. ARSON 450-457.1
CHAPTER 2. BURGLARY 458-464
CHAPTER 3. BURGLARIOUS AND LARCENOUS INSTRUMENTS AND DEADLY
WEAPONS 466-469
CHAPTER 4. FORGERY AND COUNTERFEITING 470-483.5
CHAPTER 5. LARCENY 484-502.9
CHAPTER 6. EMBEZZLEMENT 503-515
CHAPTER 7. EXTORTION 518-527
CHAPTER 8. FALSE PERSONATION AND CHEATS 528-539
CHAPTER 10. CRIMES AGAINST INSURED PROPERTY AND INSURERS
548-551
CHAPTER 12. UNLAWFUL INTERFERENCE WITH PROPERTY
Article 1. Trespassing or Loitering Near Posted Industrial
Property 552-555.5
Article 2. Unlawfully Placing Signs on Public and Private
Property 556-556.4
Article 3. Trespass on Property Belonging to the
University of California 558-558.1
CHAPTER 12.5. CRIMES INVOLVING BAILMENTS 560-560.6
CHAPTER 12.6. CRIMES INVOLVING BRANDED CONTAINERS,
CABINETS, OR OTHER DAIRY EQUIPMENT 565-566
CHAPTER 12.7. UNLAWFUL SUBLEASING OF MOTOR VEHICLES 570-
574
CHAPTER 14. FRAUDULENT ISSUE OF DOCUMENTS OF TITLE TO
MERCHANDISE 577-583
CHAPTER 15. MALICIOUS INJURIES TO RAILROAD BRIDGES,
HIGHWAYS,
BRIDGES, AND TELEGRAPHS 587-593g
TITLE 14. MALICIOUS MISCHIEF 594-625c
TITLE 15. MISCELLANEOUS CRIMES
CHAPTER 1. SCHOOLS 626-626.11
CHAPTER 1.1. ACCESS TO SCHOOL PREMISES 627-627.10
CHAPTER 1.4. INTERCEPTION OF WIRE, ELECTRONIC DIGITAL
PAGER,OR ELECTRONIC CELLULAR TELEPHONE
COMMUNICATIONS 629.50-629.98
CHAPTER 1.5. INVASION OF PRIVACY 630-638
CHAPTER 2. OF OTHER AND MISCELLANEOUS OFFENSES 639-653.2
CHAPTER 2.5. LOITERING FOR THE PURPOSE OF ENGAGING IN A
PROSTITUTION OFFENSE 653.20-653.28
CHAPTER 3. IMMIGRATION MATTERS 653.55-653.61
 CHAPTER 4. CRIMES COMMITTED WHILE IN CUSTODY IN
CORRECTIONAL FACILITIES 653.75

Police officers will not openly rape, murder, and steal to aid in
their pursuit of justice. However a police officer will speed, run stop
signs, and drive on the wrong side of the road to facilitate his pursuit of
a criminal. That is because the murder, rape, and stealing are crimes,
whereas speeding, and running stop signs are not crimes.

Let us keep looking at what a crime is, and how a state does not
license crime. Let us examine more closely how engaging in a
licensable activity without a license is not a “crime”. The case of Schick
V. The United States is a hallmark case which denies the right of jury
trial to many “criminal” proceedings that do not prosecute “actual
crimes”. That is to say that “criminal actions” does not mean “to
prosecute a crime”. The Supreme Court essentially twisted the law
with this decision so if it reads absurdly written, well, it pretty much is.
Schick is a United States Supreme Court case. Remember that federal
law and state law are different spheres of law, different bodies of law,
so we must either make a bridge to the state law or simply use it as
guidance. In this essay we will build the bridge to state law.

“So small a penalty for violating a revenue statute

indicates only a petty offense. It is not one necessarily
involving any moral delinquency. The violation may
have been the result of ignorance or
thoughtlessness, and must be classed with such
illegal acts as acting as an auctioneer or peddler
without a license, or making a deed without affixing the
proper stamp. That by other sections of this statute
more serious offenses are described, and more
grave punishments provided, does not lift this one
to the dignity of a crime. Not infrequently, a single
statute in its several sections provides for offenses of
different grades, subject to different punishments and to
prosecution in different ways. In some states, in the same
act are gathered all the various offenses against the
person, ranging from simple assault to murder, and
imposing punishments, from a mere fine to death. This
very statute furnishes an illustration. By one clause, the
knowingly selling of adulterated butter in any other than
the prescribed form subjects the party convicted thereof to
a fine of not more than $1,000 and imprisonment for not
more than two years. An officer of customs violating
certain provisions of the act is declared guilty of a
misdemeanor, and subject to a fine of not less than one
thousand dollars nor more than five thousand dollars and
imprisonment for not less than six months nor more than
three years. Obviously, these violations of certain
provisions of the statute must be classed among serious
criminal offenses, and can be prosecuted only by
indictment, while the violations of the statute in the cases
before us were prosecuted by information. The truth is, the
nature of the offense and the amount of punishment
prescribed, rather than its place in the statutes, determine
whether it is to be classed among serious or petty offenses
-- whether among crimes or misdemeanors. Clearly both
indicate that this particular violation of the statute is only a
petty offense.

In such a case, there is no constitutional requirement of a

jury. In the third clause of Section 2, Article 3, of the
Constitution it is provided that "the trial of all crimes,
except in cases of impeachment, shall be by jury," and in
Article VI of the Amendments, that,

"in all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial by an impartial jury of the
state and district wherein the crime shall have been
committed."”

“"A crime or misdemeanor, is an act committed or omitted

in violation of a public law either forbidding or commanding
it. This general definition comprehends both crimes and
misdemeanors, which, properly speaking, are mere
synonymous terms, though in common usage the word
'crimes' is made to denote such offenses as are of a deeper
and more atrocious dye; while smaller faults and omissions
of less consequence are comprised under the gentler name
of 'misdemeanors' only."

In the light of this definition, we can appreciate the action

of the convention which framed the Constitution. In the
draft of that instrument as reported by the
 committee of five, the language was "the trial of all
criminal offenses . . . shall be by jury," but, by
unanimous vote, it was amended so as to read "the
trial of all crimes." The significance of this change
cannot be misunderstood. If the language had
remained "criminal offenses," it might have been
contended that it meant all offenses of a criminal
nature, petty as well as serious; but when the change
was made from "criminal offenses" to "crimes," and made
in the light of the popular understanding of the meaning of
the word "crimes" as stated by Blackstone, it is obvious
that the intent was to exclude from the constitutional
requirement of a jury the trial of petty criminal offenses.”
Schick v. United States, 195 U.S. 65 (1904)

It appears from Schick that many things that are prosecuted

“criminally” are not actual “crimes”. Oh dear. What a sly move the
United States Supreme Court did there and California gobbled it up and
incorporated it into its case law. However in California we secured to all
the right to a jury trial for all in every action. And the method for
waiving a jury trial is criminal proceedings is for just that, criminal
proceedings and not the trial of all crimes. If a jury trial can be waived
in some criminal proceedings then the right must exist to be waived.

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS

SEC. 16. Trial by jury is an inviolate right and shall

be secured to all, but in a civil cause three-fourths of the
jury may render a verdict. A jury may be waived in a
criminal cause by the consent of both parties expressed in
open court by the defendant and the defendant's counsel.
In a civil cause a jury may be waived by the consent of the
parties expressed as prescribed by statute.
In civil causes the jury shall consist of 12 persons or a
lesser number agreed on by the parties in open court. In
civil causes other than causes within the appellate
jurisdiction of the court of appeal the Legislature may
provide that the jury shall consist of eight persons or a
lesser number agreed on by the parties in open court.
In criminal actions in which a felony is charged, the jury
shall consist of 12 persons. In criminal actions in which a
misdemeanor is charged, the jury shall consist of 12
 persons or a lesser number agreed on by the parties in
open court.

Notice that is California we gave the right to a trial to “ALL”

[persons]. In California we did not give the right to a jury trial to the
“trial of crimes” or to some other type of proceeding as the Federal
Constitution did. In California the right to a jury trial is given to all
persons and the type of trial simply helps define what type of jury trial
must be had r the procedure to waive your right!

The U.S Supreme Court in Schick ruled that the framers excluded
“petty offenses” from the right to a jury trial by securing a jury trial
only to prosecution of “crimes”. The court also ruled that a “petty
offense” was not a crime. Remember that, a petty offense is not a
crime however it is proceeded against criminally.

CRIMES AND PUBLIC OFFENSES

People in the state of California can only be punished for

the commission of “Crime” or “public offense”.

California Penal Code(My comments in brackets [ ] )

Section 27.
(a) The following persons are liable to punishment under
the laws of this state:(1) All persons who commit, in whole
or in part, any crime within this state.(2) All who
commit any offense without this state which, if committed
within this state, would be larceny, carjacking, robbery,
or embezzlement under the laws of this state [I notice all
"offenses” listed are in fact crimes], and bring the property
stolen or embezzled, or any part of it, or are found with it,
or any part of it, within this state.(3) All who, being without
this state, cause or aid, advise or encourage, another
person to commit a crime within this state, and are
afterwards found therein.
(b) Perjury [I notice Perjury is a crime], in violation of
Section 118, is punishable also when committed outside of
California to the extent provided in Section 118.

PENAL CODE
777 Every person is liable to punishment by the
laws of this State, for a public offense committed by
him therein, except where it is by law cognizable
exclusively in the courts of the United States; and except
 as otherwise provided by law the jurisdiction of every
public offense is in any competent court within the
jurisdictional territory of which it is committed.

GOVERNMENT CODE
200 The State has the rights prescribed in this article over
persons within its limits, to be exercised in the cases and in
the manner provided by law.

GOVERNMENT CODE
201 The State may punish for crime.

One federal court has ruled that in California “crime” and “public
offense” are synonymous terms.

"In California 'a public offense' is synonymous

with 'a crime.' Cal.Penal Code 15. A crime includes
both felonies and misdemeanors. Cal.Penal Code 16. A
policeman of a city or town is a peace officer. Cal.Penal
Code 7, 817. Two of the arresting officers, Gough and
Duncan were 'police officers for the City of Los Angeles.'
The third officer present, Katayama, was a Special Agent of
the United States Treasury Department. California Penal
Code 337a makes it a crime for any person (1) to engage
in bookmaking, or (2) occupy any room with papers or
device for the purpose of recording or registering any bets
or purported bets on the result or purported result of any
lot, chance or contingent event, or (3) hold money for any
such bet, or (4) record or register any bet, or (6) offer or
accept any bets. This section applies by its terms to any
person performing in any single instance any such
prohibited act."

287 F.2d 117

INFRACTIONS ARE NOT CRIMES

In California there is in law a thing called an infraction. An

infraction is charged in court and the procedure used in court is
criminal procedure. An infraction carries no possible punishment of jail
time, and the right to a jury trial is non-existent. Typical charges that
are infractions include “speeding”, “running stop signs”, etc...
 The legislature has tried to include “infractions” as crimes.
Infractions are listed in section 16 of the penal code as a type of crime
or public offense. Unfortunately the legislature is wrong. The right to a
jury trial for a criminal prosecution in California is found in our
Constitution and the constitution trumps ANY statute passed by
legislature. So the legislature tried to make something a crime that is
not a crime through legislative fiat and then deny a jury trial. We will
soon see what the courts thought of that.

One might make the argument that speeding is prohibited and

not allowed by anyone. Yet of course speeding is allowed for in
emergencies. Also there is an abstract concept of law which places
“speeding” in a regulatory scheme, and prohibitions withing a larger
regulatory scheme are considered part of the regulatory scheme which
is civil in nature.

But can all of this be proved? We have seen the laws that say
that people can be punished for “crime” and for “public offenses”.
There are no such laws naming infractions as something for which a
person may be punished for. So can it be proved that an infraction is
not a crime nor a public offence and therefore no lawful punishment
can be inflicted for the commission of such an infraction? Yes it can be
proved.

We start with the case of People V. Sava which states the case
plainly. People Vs. Sava is a California Appellate Court and is valid case
law until overruled by the California Supreme Court.

Further, infractions are not crimes and the rule

forbidding successive prosecutions of a defendant is not
applicable when an infraction is one of the offenses
involved. (People v. Battle (1975) 50 Cal.App.3d Supp. 1
[123 Cal.Rptr. 636].) fn. 1 [1b] Proceedings on infractions
are not attended by the same constitutional safeguards as
those attending felony or misdemeanor prosecutions. The
limitation on an accused's right to jury trial of infractions
has withstood constitutional attack upon the rationale the
Legislature did not intend to classify infractions as
crimes. (See People v. Oppenheimer (1974) 42 Cal.App.3d
Supp. 4 [116 Cal.Rptr. 795] and People v. Battle, supra,
50 Cal.App.3d Supp. 1.)

People v. Sava (1987) 190 Cal.App.3d 935 , 235

Cal.Rptr. 694
 People V. Sava seems to state things pretty straight forward.
Infractions are not crimes. This is very strong evidence that infractions
are in fact not crimes. We should explore this concept further however
because we want to know exactly why infractions are not crimes and
also to see how sound the logic in the Sava court was. The Sava case
directs us to see People V Battle, so lets do that.

If the Legislature intended to treat infractions as

public offenses and if the charging of a public offense
invokes the right to trial by jury, sections 19c and 1042.5,
which deny a jury to one who commits an infraction,
conflict with section 689. However, the same (1968)
Legislature enacted section 19c, the pertinent amendment
of section 16 and section 1042.5. Construing these
sections in accordance with the precepts laid down in In re
Kay, supra, we must conclude that it was not the
intent of the Legislature to enact inconsistent
statutes and, further, that when it added the term
"public offense" to section 16 it was not so
categorizing infractions because if it did so, it would
have caused inconsistency between sections 19c and 689
of the Penal Code.

The court in People v. Oppenheimer (1974) 42

Cal.App.3d Supp. 4 [116 Cal.Rptr. 795], declares
that an infraction is a petty offense. A defendant was
not historically accorded the right to a jury in trials of petty
offenses. Whether an infraction is characterized as a
petty offense or a noncriminal offense, an appellate
court in the circumstances of the present case should not
bar prosecution for manslaughter by reason of an earlier
plea of nolo contendere to an infraction. To do otherwise
would fly in the face of the legislative adjuration to
construe statutory provisions "according to the fair import
of their terms, with a view to effect its objects and to
promote justice." (Pen. Code, §§ 4.)

Above we see that the court of People V. Battle relies on

the logic of People V. Oppenheimer. We now examine People V.
Oppenheimer.

[3] Confining our inquiry then to the "purely

 historical question" posed by People v. One 1941
Chevrolet Coupe, supra, 37 Cal.2d at page 287, and
applying the English common law as it existed in 1850, it is
clear that offenses of the same class as those now
classified as infractions by the Vehicle Code were triable by
courts sitting without juries. Under this approach sections
19c and 1042.5 of the Penal Code fully measure up to the
constitutional mark.

We will address the case of People V. People v. One 1941

Chevrolet Coupe directly after our analysis of Oppenheimer. For now it
is enough to say that there are no provisions in the California
Constitution for the trial of Cars. The term for a “thing” being tried is “a
trial in rem”. The object is “rem”. To decide how to proceed in rem the
Court had to look at the common law. The court found that there was
no common law right to jury trials at common law for in rem
proceedings. There is language in our constriction for the trial of “all”
and therefore it is wrong to apply the “purely historical question” rule
to the trial of a man, for the trial of that man is governed by article 1
section 16 of the California Constitution which provides a security to a
jury trial to “all”. What was the “purely historical question” of One
Chevrolet? The question was “is there a right to a jury trial for “in rem”
proceedings. If this seems fantastic, that objects can be sued… well
just wait for the complete analysis of People V. People v. One 1941
Chevrolet Coupe. Now back to more Oppenheimer.

Federal constitutional provisions relating to jury

trials fn. 5 are applicable to the states through the 14th
Amendment. Duncan v. Louisiana (1968) 391 U.S. 145 [20
L.Ed.2d 491, 88 S.Ct. 1444]. Duncan and other decisions of
the Supreme Court preceding and following it, e.g., Callan
v. Wilson (1888) 127 U.S. 540, 557 [32 L.Ed. 223, 227,
228, 8 S.Ct. 1301]; Natal v. Louisiana (1891) 139 U.S. 621
[35 L.Ed. 288, 11 S.Ct. 636]; Schick v. United States (1904)
195 U.S. 65 [49 L.Ed. 99, 24 S.Ct. 826]; District of
Columbia v. Colts (1930) 282 U.S. 63 [75 L.Ed. 177, 51
S.Ct. 52]; District of Columbia v. Clawans (1937) 300 U.S.
617, 624 [81 L.Ed. 843, 846, 57 S.Ct. 660]; and Baldwin v.
New York (1970) 399 U.S. 66 [26 L.Ed.2d 437, 90 S.Ct.
1886] all recognize that "petty" offenses do not fall
within the constitutional requirement of jury trial.

Above is part of Oppenheimer that is easy to misunderstand.

Realize that the Federal Constitution uses different words and different
constructions. In the Constitution of the United States there are two
sections that deal with the same subject matter, i.e. the provisions for
jury trials. This creates some “conflict” in the law, which the courts
must decide. This is how the Schick court was able to stick there nose
in there and decide that the conflict means that there are jury trials
only for “crimes”. No such conflict exists in the California Constitution.

Oppenheimer is calling the offense a “petty offense” and the

court even site Schick in its list of all federal cases (That is what all
those red “U.S.”s are.) that deny a jury trial to petty offenses. The
court fails to mention that Schick denied the right based on the logic
that a “petty offense” is not a crime.

Concerning the right to jury trial in California, our Supreme

Court has said (adopting an opinion written for the then District
Court of Appeal): "The right to trial by jury guaranteed by the
Constitution is the right as it existed at common law at the time
the Constitution was adopted [citation omitted]. The common
law at the time the Constitution was adopted includes not only
the lex non scripta, but also the written statutes enacted by
Parliament [citation omitted]. The common law respecting trial
by jury as it existed in 1850 is the rule of decision in this state
[citation omitted]. Any act of the Legislature attempting to
abridge the constitutional right is void [citation omitted]. It is the
right to trial by jury as it existed at common law which is
preserved; and what that right is, is a purely historical question,
a fact which is to be ascertained like any other social, political or
legal fact. The right is the historical right enjoyed at the time it
was guaranteed by the Constitution. It is necessary, therefore, to
ascertain what was the rule of the English common law upon this
subject in 1850." People v. One 1941 Chevrolet Coupe
(1951) 37 Cal.2d 283, 286-287 [231 P.2d 832]. See also Ex
parte Wong You Ting (1895) 106 Cal. 296, 298-299 [39 P. 627];
People v. Kelly (1928) 203 Cal. 128, 133 [263 P. 226].

Notice the Oppenheimer court has quoted the case concerning

the right to a trial for in rem cases and has disguised the case. This is
why a diligence is required in the persuit of knowing the law and doing
research. The Oppenheimer court is a fraud but you need to know how
to prove that. You prove that by analyzing the cases this court relies
on. Oppenheimer is a superior court sitting as an appellate court. Such
an appellate court is not an appellate court in the traditional sense.
Superior Courts sitting as appellate courts get put in pages numbered
with “supp.” This means that Oppenheimer is lowly court with very
little authority. Battle was also such a court. Sava however was
decided in a bona fide appellate court.

The following is from the case People v. One 1941 Chevrolet

Coupe , 37 Cal.2d 283. That is right, the Oppenheimer court used a
non-jury trial of a car to justify denying a jury trial to a person, one of
the “all” contemplated by the California Constitution at article one,
section sixteen.

"The State instituted this proceeding by filing a

'Notice of Seizure and Intended Forfeiture Proceedings'
People v. One 1941 Chevrolet Coupe , 37 Cal.2d 283

A “Notice of Seizure and Intended Forfeiture Proceedings” is not

a criminal pleading. There are only three types of criminal pleadings
without considering administrative pleadings, and they are the
indictment, the information, and the complaint. And remember that in
our California Constitution the right to a jury trial was given to “all” and
“all” probably means persons, not cars. [admittedly there are not any
cases that have decided the issue…uh oh…]

"The State instituted this proceeding by filing a

'Notice of Seizure and Intended Forfeiture
Proceedings' as provided by sections 11612 and 11613 of
the Health and Safety Code. The notice alleged that the
automobile had been seized pursuant to section 11611 of
that code and that it 'was used to unlawfully conceal,
convey, carry or transport marijuana, and marijuana was
unlawfully in the possession of an occupant…'
…1] "There can be no forfeiture of property without notice
to the owner and a hearing at which he can be heard,
except in a few cases of necessity, i. e., property kept in
violation of law which is incapable of lawful use. Where the
property is what is sometimes termed innocent property,
threatening no danger to the public welfare, the owner
must be afforded a fair opportunity to be heard. This is true
whether it be a common-law or judicial forfeiture (one
which does not take effect until by a judgment the rights of
the State have been established in a suit instituted for that
purpose), or a statutory or legislative forfeiture (one where
the forfeiture is effective on the commission of the
offense). In either case the law requires proceedings to be
instituted for the purpose of ascertaining the facts of the
forfeiture. (People v. Broad, 216 Cal. 1, 3-7 [12 P.2d 941].)
[2] A statutory or legislative forfeiture is in rem against the
property itself. A common-law or judicial forfeiture is in
personam against a defendant (37 C.J.S. 5, sec. 2). The
forfeiture prescribed by the Health and Safety Code
is in rem. (People v. Broad, 216 Cal. 1 [12 P.2d 941]; 37
C.J.S. 5, sec 2.) The effect of such a forfeiture is to transfer
 the title to the vehicle from the owner to the State……At
common law the trial of actions for forfeiture to the Crown
of property used in violation of law was in the Court of
Exchequer. 'The term "Common Law" often refers to those
principles of English Law which were evolved in the
Common Law Courts, as opposed to the principles which
were applied in the Courts of Chancery and Admiralty and
the Ecclesiastical Courts…
"... [T]he conclusions of our Supreme Court in the Moore
case were followed by the Supreme Court of the United
States in the decision of the case, C.J. Hendry Co. v. Moore,
318 U.S. 133 [63 S.Ct. 499, 87 L.Ed. 663]. In what Dean
****inson fn. 5 has described as 'at once a monumental
piece of erudition and a notable contribution to the
meaning of the much mooted phrase "common law
remedy," ' fn. 6 Mr. Chief Justice Stone, [37 Cal.2d 290]
writing for the court, said (87 L.Ed. 666): 'Forfeiture to the
Crown of the offending object, because it had been used in
violation of law, by a procedure in rem was a practice
familiar not only to the English admiralty courts but to the
Court of Exchequer. The Exchequer gave such a
remedy for the forfeiture of articles seized on land
for the violation of law. And, concurrently with the
admiralty, it entertained true proceedings in rem for the
forfeiture of vessels for violations on navigable waters.
Such suits in the Exchequer were begun on information
and were against the vessel or article to be condemned.
Under the provisions of many statutes the suit might be
brought by an informer qui tam, who was permitted to
share in the proceeds of the forfeited article; the judgment
was of forfeiture and the forfeited article was ordered to be
sold. This was the established procedure certainly as early
as the latter part of the seventeenth century...
People v. One 1941 Chevrolet Coupe , 37 Cal.2d 283

It is noteworthy that all trials in the court of exchequer were civil

in nature, even though suing on behalf of the crown. Please read below
to learn more about the Court of Exchequer’s role in dealing with
“civil” causes.

The case of In re FIFE the court declares that there is no right to a jury
trial in California for the trial of petty offenses, even if they carry jail
time. Today the rule of law is that one gets a jury trial for anything that
carries a possibility of jail time.
 McFARLAND, 3. This Is a petition for a writ of habeas
corpus. The petitioner shows that she was convicted in the
police court of the city of Los Angeles of the offense of
vagrancy; that she appealed to the superior court of the
county of Los Angeles, where the judgment of the police
court was affirmed; and that she did not waive a jury in the
said police court, and expressly made a demand in the
superior court for a jury, and said demand was refused. Her
contention Is that, having been tried and convicted under
these circumstances, without the Intervention of a jury, her
imprisonment is illegal, and that she should be restored to
her liberty upon habeas corpus. In the recent case of Ex
parte Wong You Ting, 106 Cal. 296, 39 Pac. 627, we
took occasion to inquire somewhat fully into the right of a
jury trial in criminal cases; and our conclusion there was
that the legislature might provide for summary
proceedings without a jury In cases of such petty offenses
as were thus provided for in certain early English statutes
and In cases which are intrinsically of a similar nature and
degree as those mentioned In said statutes. Vagrancy is,
we think, one of those offenses, and the legislature might
provide by a general law for the summary trial without a
jury of persons charged with said offense;

In re FIFE (Or. 99.) (Stroreme Court of California. Nov. 7, 1895.)

Habeas Corpus—Juby Tkial—Review.

The King's Court divided into other courte.

In William the Conqueror's reign, all business relating

to the royal revenue was taken away from the King's Court,
and transacted in a court called The Court of Exchequer,
which was formed after the model of a similar court in
Normandy. The Grand Justiciary, and the Chancellor,
(about whom I shall tell you presently,) who had the charge
of the King's great seal, and such of the King's barons and
dignitaries of the Church as the King chose for the purpose,
attended. The Grand Justiciary presided. The Chief Justice
of the Queen's Bench, who at the present day "in some
respects represents the Grand Justiciary of ancient times,
is still, from his office, Chancellor of the Exchequer when a
vacancy occurs.' This court was called the Exchequer, from
the chequered cloth, resembling a chess board, which
covered the table there, and on which, when certain of the
King's accounts were made up, the sums were marked and
 scored by counters.

In King John's reign, another branch of business Conn

of was removed from the King's Court. By one of the
articles of Magna Charta it was declared that those injuries
called common pleas, that is, pleas or complaints relative
to land, or to injuries merely civil, such as a debt owed by
one man to another, should no longer follow the King. That
is, they should not be tried in the King's Court, which at
that time followed the King from place to place in his
progresses through the kingdom. From thenceforward such
causes were tried at Westminster in a court called the
Court of Common Pleas, and from that time the King's
Court was called the Court of King's Bench, because the
King used to sit there in person. It continued to be, and still
is, the superior court of law of importance in all matters of
Common and Criminal Law, and in many other matters.

The three courts I have described, viz., The Court of

Exchequer, the Court of Common Pleas, and the Court of
King's Bench, were, and are, the principal Courts of Justice
in the realm for the administration of the common law.

Formerly, each of these courts had a separate

jurisdiction. The King's Bench heard principally criminal
causes, and certain others, such as trespass accompanied
by violence, and also such as related to the controlling of
inferior courts; the Common Pleas was for trials of disputes
between subject, and the Exchequer decided only such
causes as related to the collection of the revenue.
Lectures on the history of England, Volume 1; Page 115,
By William Longman

Here is another quote from People v. One 1941 Chevrolet

Coupe , 37 Cal.2d 283 that shows the common law nature of the
power to sue in the court of Exchequer:

" 'It is noteworthy that Blackstone's Commentaries, more

read in America before the Revolution than any other law
book, referred to the information in rem in the Court of [37
Cal.2d 291] Exchequer as the procedure by which
forfeitures were inflicted for violation of Acts of Parliament.
Bk. 3, p. 262. And Kent, in his Commentaries, pointed out
that "seizures, in England, for violation of the laws of
 revenue, trade or navigation, were tried by a jury in the
Court of Exchequer, according to the course of the
common law;
People v. One 1941 Chevrolet Coupe , 37 Cal.2d 283

THERE IS NO PERSONAL JURISDICTION FOR ANY

TICKET (PROMISE TO APPEAR)

Personal Jurisdiction is established over a defendant by one of

three ways.

1) The defendant is arrested and brought before the court.

2) The defendant is served a summons and the prof of that service is
filed with the court.
3) The defendant voluntarily makes a "general appearance".

The above is standard law. The three ways of obtaining personal

jurisdiction are the same in virtually every state. To argue lack of
personal jurisdiction one must never appear generally before making
this argument. A general appearance is one which advances a defence
of the charges on their merrits, or arguing the facts presented by the
plaintiff. Do not do that. You should argue that the court lacks Personal
Jurisdiction as the very first thing you do in your case. While arguing
that the court lacks Personal Jurisdiction do nothing else. Do not argue
about the actual charge, just argue that the the court never obtained
jurisdiction over the defendant.

A ticket, a notice to appearr, and a promise to appear all have

something in common. none were issued by a court, and none of them
are a "summons". Thus giving you a ticket did not establish the courts
jurisdiction over you, and it can't for many reasons. The first reason is
that a cop issued the ticket and not a judicial officer. This means the
ticket cannot be a judicial summons. Also the "ticket" does not turn
into a complaint until it is filed in court, thus when you were given the
ticket there was no court "case" that is could be granting jurisdctiction
to, because for a court to have subject matter jurisdiction it must have
a valid complaint filed with it. When the cop hands you a ticket that
ticket has not yet been filed in court, and so cannot be used as a court
instrument yet.

What we do with all of this is to appear in court, but appear

"specially" and not "genereally" to contest personal jurisdiction. The
court has none. If theey overrule you, make exception of the point and
argue it in appeal.
WHY ARE CRIMINAL LICENSING SCHEMES
REPUGNANT TO OUR CONSTITUTION?

“Although a franchise is a special privilege conferred

by government, not every such privilege is a franchise,
particularly where the governmental body conferring the
privilege is acting in its proprietary, rather than its
governmental capacity. A right or privilege that is essential
to the performance of the general function or purpose of
the grantee, and that can be granted by the sovereignty
alone, is a franchise, whereas a right or privilege that is not
essential to the general function or purpose of the grantee,
and is of a nature that a private party might grant a like
right or privilege on his or her property, namely, a
temporary or revocable permission to occupy or use a
portion of some public ground, is a license and not a
franchise. A license is not regarded as property in the
ordinary sense and is not a contract, whereas a franchise is
both. Moreover, a franchise is assignable, whereas a
license, being a personal privilege, ordinarily is not. That a
privilege is revocable without cause tends to show that it is
a license or permit rather than a franchise, since the
concept of franchise, while not requiring continuance in
perpetuity, involves some degree of permanence and
stability.”

(California jurisprudence – license) [Regrettably I

have temporarily misplaced this citation]

“Generally, a franchise agreement is granted by a

governmental agency to enable an entity to provide public
services with some degree of permanence and stability,
such as franchises for utilities. According to California case
law, a franchise is a negotiated contract between a private
enterprise and a governmental entity for the long-term
possession of land. Franchise fees are paid as
compensation for the grant of a right of way, and are
usually not considered a license or tax.”

In-lieu Franchise Fees: Illegal Under Proposition 218

By Jonathan M. Coupal